Hutchinson v Van Den Berg

Supreme Court of South Australia
(Civil)
HUTCHINSON v VAN DEN BERG
[2022] SASC 90
Judgment of the Honourable Justice Bampton

INSURANCE - MOTOR VEHICLES - INSURANCE OF MOTOR VEHICLES FOR LOSS OR DAMAGE - LIABILITY FOR PERSONAL INJURY

TORTS - NEGLIGENCE - OTHER PARTICULAR CLAIMANTS, DEFENDANTS AND CIRCUMSTANCES - ROAD ACCIDENTS - PEDESTRIAN ACCIDENTS
Negligence – claim for damages for injuries suffered by applicant as a pedestrian when a vehicle driven by his estranged wife collided with him – applicant alleges respondent intentionally collided with him – respondent alleges collision occurred whilst she was in a state of panic – whether respondent intentionally collided with applicant – whether collision occurred while respondent was acting in a state of panic – whether respondent owed a duty of care to applicant or, alternatively, did not breach any of duty of care.
HELD: Applicant has not established that respondent collided with him intentionally – the collision occurred while respondent was acting in a state of fear and panic – respondent did not owe applicant a duty of care in the circumstances.
Civil Liability Act 1936 (SA) ss 31, 32(1)(c), 43, referred to.
Jones v Dunkel (1959) 101 CLR 298; Rejfek v McElroy (1965) 112 CLR 517; Briginshaw v Briginshaw (1938) 60 CLR 336; Miller v Miller (2011) 242 CLR 446; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Cusack v Stayt [2000] NSWCA 244, considered.

HUTCHINSON v VAN DEN BERG
[2022] SASC 90
Civil
BAMPTON J.
Introduction
The criminal charges against Jodi
The claims for damages
The pleadings
Some explanatory remarks
The view
The account of the evidence in my reasons
The photographs taken by police
The A0 plan exhibit A1
The trial
The evidence
The animus
Fairway Street, Para Hills
The appalling state of the property on 14 January 2014 and 18 April 2014
The police statements
Senior Constable Shane Castle
Brevet Sergeant Phillipa McGowan
Troy Sage
Senior Constable Timothy Kirkland

Taylor-Marie van den Berg
The state of the property
18 April 2014
Cross-examination of Taylor
Assessment of Taylor

Troy Hutchinson
The dirty joke incident
Para Vista Shopping Centre Incident
The incident at Jodi’s cousin’s house
The state of the property
18 April 2014
Cross-examination of Troy
Re-examination of Troy
Assessment of Troy

Jamie Sayers-Hutchinson
The state of the property
18 April 2014
Cross-examination of Jamie
Assessment of Jamie

Daniel Zoontjens
Cross-examination of Daniel
Assessment of Daniel

Jodi van den Berg
The dirty joke incident
The Para Vista Shopping Centre incident
The incident at Jodi’s cousin’s place
Why Jodi left the property
The state of the property when Jodi left
Jodi altered the front numberplate of the Mazda
18 April 2014
Cross-examination of Jodi
Re-examination of Jodi
Assessment of Jodi

Accident reconstruction
The three pieces of physical evidence
Troy’s submissions on accident reconstruction
Jodi’s submission on accident reconstruction
Chris Hall
Michael Griffiths
Assessment of expert evidence

Consideration
Jones v Dunkel
The burden of proof
Jodi’s duty of care
The relationship between Troy and Jodi
The arrival of the Mazda
Where did it stop?
The approach by Jamie and Troy
Intention

The highly charged, volatile environment
Time period over which events in issue took place
Did Troy stand at the front of the vehicle?

Findings
Conclusion
Annexures
Annexure 1 – A copy of the photograph at page 52 of exhibit A2
Annexure 2 – A copy of the photograph at page 56 of exhibit A2
Annexure 3 – A copy of the photograph at page 67 of exhibit A2
Annexure 4 – A copy of the Castle worksheet
Annexure 5 – A copy of exhibit A20 marked by Taylor
Annexure 6 – A copy of exhibit A18 marked by Taylor
Annexure 7 – A copy of exhibit A34 with cut-outs placed and markings made by Troy
Annexure 8 – A copy of exhibit A22 marked by Troy
Annexure 9 – A copy of exhibit R23 marked by Troy
Annexure 10 – A copy of exhibit A46 with cut-outs placed and markings made by Jamie
Annexure 11 – A copy of exhibit A36 marked by Jamie
Annexure 12 – A copy of exhibit A37 marked by Jamie
Annexure 13 – A copy of the photograph at page 73 of exhibit A2
Annexure 14 – A copy of exhibit A47 with cut-out placed and markings made by Daniel
Annexure 15 – A copy of exhibit R57 marked by Jodi
Annexure 16 – A copy of exhibit A62 marked by Jodi
Annexure 17 – A copy of exhibit A58 marked by Jodi
Annexure 18 – A copy of exhibit A59
Annexure 19 – A copy of exhibit A60
Annexure 20 – A copy of exhibit A61 marked by Jodi
Annexure 21 – A copy of Fig. 1 depicted at page 3 of Mr Hall’s report 11 February 2021
Annexure 22 – A copy of Fig. 2 depicted at page 4 of Mr Hall’s report 11 February 2021
Annexure 23 – A copy of page 22 of Mr Griffiths’ report 22 April 2021 depicting Fig. 6, Fig. 7, and Fig. 8

Introduction

At the time they separated in May 2013, the marital relationship between the applicant, Troy Hutchinson (“Troy”), and the respondent, Jodi van den Berg (“Jodi”), was toxic. Troy and Jodi are the parents of Taylor-Marie (“Taylor”). Prior to their separation, Troy and Jodi had lived in a house registered in Troy’s name at 15 Fairway Street, Para Hills (“the property”) with Taylor, and one of Jodi’s two elder daughters from a previous relationship, Tori van den Berg (“Tori”). Following separation and Troy’s departure, Jodi continued living in the property and retained the use of a 2010 grey manual Mazda 3 sedan registered in Troy’s name (“the Mazda”). In or about January 2014, Jodi left the property with Taylor and Tori to live in a women’s shelter.
On Good Friday 18 April 2014, Troy, accompanied by his son, Jamie Sayers‑Hutchinson (“Jamie”), and two of Jamie’s friends, Daniel Zoontjens (“Daniel”) and Cruz Reynolds (“Cruz”), attended the property about 10:00 or 10:30 am for the purpose of clearing rubbish. Troy had organised the delivery of a large skip bin, which was located on the footpath outside the property.
While Troy was at the property, Jodi drove the Mazda west down Fairway Street with Taylor seated in the front passenger seat. While the Mazda was on the roadway in the vicinity of the property, an argument ensued between Troy and Jodi.
Troy alleges Jodi reversed the Mazda towards him and Jamie as they walked behind it towards the skip bin, causing them to move from its path so as not to be run over. Troy asserts the Mazda was then driven forward to a point where it came to a stop at the western edge of the driveway of 13 Fairway Street. While Troy was at or around the front lawn or driveway of 13 Fairway Street, he alleges Jodi reversed the Mazda so that it was facing towards the driveway of 13 Fairway Street and drove into and/or over him on two occasions and into and/or over Jamie (“the collision”). Prior to the Mazda colliding with Jamie, Jamie punched and removed the driver’s side window and punched the windscreen causing it to shatter. Troy alleges following the second impact with him, the Mazda reversed off the driveway and drove west down Fairway Street.
The criminal charges against Jodi
Following the collision, Jodi was charged with two counts of endanger life. The charges were downgraded to aggravated causing harm with intent to cause harm against Troy and aggravated recklessly causing harm against Jamie. Jodi was tried before a jury in the District Court (“the criminal trial”). Troy, Jamie, Cruz, and Daniel were called to give evidence for the prosecution. Jodi gave evidence in her defence and was acquitted of both charges on 13 April 2017.
The claims for damages
Troy alleges he sustained multiple injuries, including a severe crush fracture of his left ankle and lower left leg, injury to his lower back and right arm as well as psychiatric/psychological injury in the collision. He alleges the collision was caused by Jodi’s intentional negligence and seeks damages in these proceedings for his injuries. The quantum of his claim has been agreed. Accordingly, liability is the only issue for determination.
Jamie also commenced proceedings for damages for the personal injuries he suffered in the collision. Those proceedings have settled.
Daniel has commenced Magistrates Court proceedings for the nervous shock he alleges he suffered as a result of the collision. I was informed Daniel has agreed to be bound in his claim by the findings of fact I make in this matter.
Taylor, who has had no contact with Jodi since she was removed from Jodi’s care and into Troy’s custody following Family Court proceedings in December 2014, also has a claim for damages.
The pleadings
Troy submits this case is about a simple factual scenario, that is, whether Jodi intentionally ran him down causing his injuries. Jodi admits the Mazda collided with Troy, but denies the collision was caused by her negligence. Jodi contends the collision occurred when she mistakenly accelerated forward, while she was fleeing in a state of panic from what she perceived to be a dangerous situation created by Troy and Jamie.
Jodi says there was a history of violence perpetrated by Troy against her leading up to the date of collision. She alleges:
(1)on or about May 2013, Troy physically assaulted her by hitting her and pushing her;
(2)on or about 25 September 2013, Troy physically assaulted her by pushing her to the ground; and
(3)on or about March 2014, Troy physically assaulted her and dragged her by her hair.
In his reply, Troy says in relation to (1) above, on that occasion, Jodi argued with him with respect to communications on his phone and the argument escalated, resulting in Jodi pushing, shoving, and attempting to eye-gouge him. He says he pushed Jodi away to avoid being harmed by her, police attended, and he reported the incident to police. In relation to (2), Troy says on about 25 September 2013, he was at the Para Vista Shopping Centre where Jodi was also present and was in possession of a knife. He alleges that Jodi attempted to physically harm him with the knife and he pushed her to avoid being harmed by her, causing her to fall backwards. After the incident he attended at the Holden Hill police station and reported the incident to police. Troy denies allegation (3).
Troy alleges during the course of their relationship and following separation, he and Jodi engaged in many instances of verbal confrontation and used abusive language towards one another.
Jodi alleges that on the day of the collision she drove the Mazda to the property to check for and collect her mail. She says she and Troy engaged in a verbal altercation in relation to Troy throwing her property into the skip bin. She alleges Troy approached the Mazda and attempted to speak to Taylor, who refused to speak to him, following which Troy kicked the Mazda causing damage to the front passenger door. Jodi alleges Troy then approached the driver’s door and hit the driver’s side mirror while shouting at and using abusive language towards her. Jodi pleads Jamie then tried to restrain Troy and move him away. Jodi alleges that while Jamie was trying to restrain Troy, Troy was straining towards her continuing to shout at and use abusive language towards her. She alleges that he appeared as though he intended to assault her.
Jodi pleads she was preparing to put the Mazda into motion in order to leave the scene due to fear for her own safety and that of Taylor, when Troy went and stood in front of the Mazda blocking her path. She pleads she then put the Mazda in reverse and attempted to turn the Mazda so as to leave the scene in the opposite direction, the Mazda ending up stationary facing the driveway of 13 Fairway Street. Jodi alleges that during the course of this manoeuvre, Troy moved to the footpath and may have come into contact with the vehicle. Jodi says Jamie then approached the vehicle and forcefully removed the driver’s side window and hit the windscreen with his fist causing it to shatter, while yelling words at Jodi. As a consequence, Jodi says her fear for her own safety and that of Taylor was heightened. Jodi alleges she was, by this point, panicking and attempted again to reverse the Mazda, but the Mazda was – unbeknownst to her – now in first gear and moved forward. Jodi pleads, during the course of manoeuvring the Mazda in her attempt to leave the scene, the Mazda collided with Troy and Jamie.
Jodi alleges both Troy and Jamie were much bigger and stronger than her and she fled the scene in fear for her safety and that of Taylor.
Jodi alleges the collision occurred whilst she was acting in a state of panic. She denies her actions constitute negligence in the circumstances and that she did not owe a duty of care to Troy. She alleges that:
(1)she did not owe a duty of care to Troy as she was vulnerable to Troy’s actual and intended acts of violence and Jamie’s actual and intended acts of violence;
(2)she did not have responsibility for Troy’s safety in the circumstances;
(3)her actions were motivated by a desire to avoid confrontation with Troy to protect her and Taylor’s safety and to prevent damage being caused to her property; and
(4)there was good reason to suppose based on Troy’s actions that, if she had not moved the Mazda, Troy would have inflicted further violence upon the Mazda, herself, and/or Taylor.
Alternatively, Jodi says if she did owe a duty of care to Troy the standard of care was to take such care as was reasonable to avoid injury to an intending assailant and this duty of care was not breached by her.
Jodi further pleads in the alternative; liability to Troy is excluded because the collision occurred while Troy was engaged in conduct constituting one or more indictable offences contrary to s 43 of the Civil Liability Act, and the defences of obvious risk, voluntary assumption of risk, and contributory negligence.
In his reply, Troy denies that Jodi was manoeuvring the Mazda in an attempt to leave the scene and says that she brought the Mazda to a stationary position on the roadway at the front of 13 Fairway Street,[1] was yelling at him and appeared angry. He alleges that Jodi was asked to leave, did not leave the property in accordance with the request, and was in possession of a knife.
[1] As pleaded in para [4.1] of the Reply (FDN 86).
Troy alleges he had a verbal exchange with Jodi at the driver’s side of the Mazda, concluding with him saying words to the effect, “Why don’t you just fuck off and let me clean the house up”. Troy says as he and Jamie walked east along the roadway east towards the skip bin, Jodi reversed the Mazda towards him and Jamie, and they both moved from the path of the reversing Mazda so as not to be run over.
Troy says he then kicked the Mazda leaving only a footprint on the left rear panel. He alleges that Jodi drove forwards and positioned the Mazda on the southern side of Fairway Street to the west of the driveway of 13 Fairway Street, and was verbally abusive towards him and used offensive language.
Troy says he approached the passenger side of the Mazda in its position on the roadway on the southern side of Fairway Street to speak to Taylor. He was then standing in the front yard at 13 Fairway Street and proceeded to walk away from the Mazda towards the entrance to 15 Fairway Street. As he proceeded to walk away from the Mazda, Jodi reversed the Mazda under heavy acceleration in an arc onto the southern kerb and grass verge at the front of 13 Fairway Street. He alleges the Mazda came to a stop at about the commencement of the driveway of 13 Fairway Street, diagonally facing in a south-westerly direction. Jodi drove the Mazda forward and collided with him. He alleges Jodi again drove forward under heavy acceleration in a southerly direction, steered to her left and into collision with him, running over his left leg. After colliding with Troy, Jodi allegedly reversed the Mazda off him and came to a stop in the driveway of 13 Fairway Street. She then drove forward and again into collision with Troy.
Troy denies the allegations made by Jodi to the effect that she was in a state of fear and panic. He denies the defences pleaded by Jodi and denies he is guilty of contributory negligence.
Some explanatory remarks
The view
To assist me in understanding the evidence in the trial, the Court attended a view at Fairway Street and the Para Vista Shopping Centre.
The account of the evidence in my reasons
I have endeavoured to set out a complete account of the evidence I heard. I have done so to demonstrate I have considered all the evidence, to assist in explaining why I have rejected certain evidence and why I prefer one witness’s account over another’s. As a result, my reasons are lengthy and recourse to the exhibits is needed to understand the evidence regarding positions of the Mazda, Troy and Jamie during the events that unfolded on 18 April 2014.
The photographs taken by police
Statements of police officers involved in the investigation of the collision, together with the photographs referred to in their statements contained in the tender book compiled by Troy’s solicitors were received as exhibits. I point out the photographs taken by police are not numbered in the tender book by reference to the number ascribed to each photograph by each police officer in their statement. It is therefore necessary to refer to:
(1)Exhibit R3 to locate the tender book page number of the photograph that corresponds to the photograph referred to in Senior Constable Castle’s statement;[2] and
(2)Exhibit R7 to locate the tender book page number of the photograph that corresponds the to photograph referred to in Brevet Sergeant McGowan’s statement.[3]
To further complicate matters, the accident reconstruction experts called to give evidence ascribed their own numbering to the police photographs used in their reports.
[2] Exhibit A2.
[3] Exhibit A6.
The A0 plan exhibit A1
I pause to point out the procedure by which Troy’s counsel adduced evidence of the location of the Mazda, Troy, and Jamie at the various points on Fairway Street. The A0‑sized plan, exhibit A1, was attached to a pinboard with cut-outs of vehicles (“cut-outs”) representing the Mazda.[4] As the witnesses identified the location of the Mazda on Fairway Street, they were asked to attach a cut-out to the plan with Blu-tack. As the witnesses identified their position or the position of others at various points, they marked the plan as requested by Troy’s counsel.
[4] Jodi’s counsel agreed the A0 plan was “near enough to scale”.
Photographs of the A0 plan, exhibit A1, were taken sequentially as each cut‑out was positioned or marked by a witness. Accordingly, the following exhibits are the products of that procedure:
·exhibit A20 – a copy of exhibit A1 as marked by Taylor together with five photos of A20, accompanied by an aide-memoire;
·exhibit A34 – a copy of exhibit A1 as marked by Troy together with five photographs;
·exhibit A46 – a copy of exhibit A1 as marked by Jamie together with three photographs, accompanied by an aide-memoire;
·exhibit A47 – a copy of exhibit A1 as marked by Daniel together with one photograph, accompanied by an aide-memoire; and
·exhibit A62 – a copy of exhibit A1 as marked by Jodi together with one photograph.
To assist in understanding these reasons, I have annexed a copy of the last or only photograph in the series that comprises exhibit A20, exhibit A34, exhibit A46, exhibit A47, and exhibit A62 during my account of the evidence given by the witness to whom the exhibit relates. I have also annexed selected photographs taken by police marked by the witnesses.
The trial

Senior counsel for Troy said in opening:[5]
As can be expected in a case involving events that occurred in 2014 that occurred only in the space of a few minutes where all the witnesses and the applicant were in a state of continual movement, the memory of the witnesses as to their precise movements or the car driven by the respondent in the same period do not neatly dovetail; that is to be expected. And there are gaps in the recall of some of the witnesses; none of that is surprising.
Counsel continued:[6]
However in respect of the movements of the vehicle driven by the respondent, it is the critical few moments when the respondent drove up the driveway to come into collision with the applicant, and her reversing back and forward again motion to come into collision on a second occasion with the applicant that is the key to the resolution of this claim.
[5] T47.2-10.
[6] T47.11-17.
The evidence
Troy gave evidence and called Taylor, Jamie, Daniel, and the mechanical engineer, Chris Hall.
Jodi gave evidence and called the biomedical/mechanical engineer, Michael Griffiths.
The animus
Troy and Jodi’s relationship continues to be acrimonious. Troy asserted he “knew” Jodi vandalised the property, alleged she was associating with “unsightly” persons and inferred she carried a knife as a weapon. Jodi peppered her evidence with references to Troy having been a member of and “kicked out” of the outlaw motorcycle gang, the Gypsy Jokers. She also alleged he was the perpetrator of domestic violence against her. Jamie, with whom Taylor was living at the time of the trial, is of the view Jodi is a “criminal” who “got away with attempted murder”.[7] Taylor, who is clearly hurt by what she referred to as Jodi’s neglect of her, gave evidence to the effect that during and after the collision Jodi engaged in actions and uttered words indicating her intention to and pleasure at having driven into Troy and Jamie.
[7] T406.7
Fairway Street, Para Hills
Fairway Street in Para Hills is aligned in an east-west orientation. The property is on the southern side of Fairway Street. The neighbouring property to the west, where the collision occurred, is 13 Fairway Street.
The appalling state of the property on 14 January 2014 and 18 April 2014
On 14 January 2014, Troy, attended the property in the company of police. The following police incident report dated 14 January 2014 details the appalling state of the property observed by attending officers as follows:[8]
Police attended a/a which is owned by Troy Hutchinson. His ex [Jodi van den Berg] has been living there in pathological filth and he went there today to check on the welfare of his child with [Jodi], [name of child redacted]. The house has been vacated with 2 dogs & 2 cats left there. The entire yard and house is full of hoarded rubbish, the ground, floors & walls are not visible. Animal faeceseverywhere (sic). RSPCA notified. CARL notification made re [name redacted] despite her not being there, she is clearly at risk if she has been living there. The stench and the hoarded rubbish will require professionals to remove. Police obs Troy cut padlock on the front gate and replace it with his own. Police obs Troy advise [Jodi] by text that he wants his car back within 24hrs or he will report it stolen. … Anci added for patrols’ info when dealing with the pair.
[8] Exhibit R64.
Troy gave evidence he took photographs and a video of the state of the property when he attended on 18 April 2014. Copies of the photographs and the video were received into evidence as exhibit A4. Troy said he was advised to take photographs by police so that “if so if it ends up in court I had some proof of evidence of what was going on at the house”.[9]
[9] T214.2-3.
The police statements
Statements of the following police officers involved in the criminal investigation pertaining to the collision were tendered into evidence.
Senior Constable Shane Castle
The crime scene investigator, Senior Constable Shane Castle described in his statement dated 6 May 2014[10] that he attended Fairway Street Para Hills at about 12:05 pm on 18 April 2014. During his examination of the scene, Senior Constable Castle collected several exhibits and took a series of photographs. Prints of the photographs are page numbers 52 to 90 of exhibit A2 contained in the tender book compiled by Troy’s solicitors. As discussed above, it is necessary to refer to the exhibit R3 to locate the tender book page number of the photograph that corresponds to the photograph referred to in Senior Constable Castle’s statement.
[10] Exhibit A2
Senior Constable Castle noted:
(1)The area in front of 13 Fairway Street (photographs at pages 52 and 57 of exhibit A2);
(2)A small section of grass verge on the north-eastern corner of 13 Fairway Street between the driveway of 13 Fairway Street and the western boundary fence of the property (photographs at pages 54, 58, and 59 of exhibit A2);
(3)A large bin positioned on the northern side of the property’s front fence and driveway on the public verge (depicted in photograph at page 53 of exhibit A2);
(4)The driveway located on the eastern side of 13 Fairway Street ran north south (depicted in photographs at pages 55 to 62 of exhibit A2);
(5)A tyre mark at the north-western end of the driveway of 13 Fairway Street identified by scene marker 2 as depicted in photographs at pages 67, 68, 69, 87, and 90 of exhibit A2 (“the tyre mark on the driveway”);
(6)Two pieces of broken glass, shattered into small cube like pieces held together by window tinting, on the grass verge adjacent to the north‑western end of the driveway of 13 Fairway Street, identified by scene marker 3 as depicted in the photographs at pages 70, 71, 72, and 86 of exhibit A2 (“the pieces of glass”); and
(7)A tyre mark on the grass verge west of the northern end of the driveway at 13 Fairway Street identified by scene marker 4 as depicted in photographs at pages 73, 74, 80, 81 and 84 of exhibit A2 (“the tyre mark on the grass verge”).
The tyre mark on the driveway, the pieces of glass and the tyre mark on the grass verge are the three pieces of physical evidence considered by each of the accident reconstruction experts called by Troy and Jodi to give evidence. The locations of the three pieces of physical evidence are not marked on the A0 plan exhibit A1.
I note by reference to Senior Constable Castle’s Crime Scene Investigator’s Worksheet[11] diagram (not to scale) of the driveway of 13 Fairway Street, depicting the location of tyre marks and pieces of glass, at page 40 of the tender book (“the Castle worksheet”):
(1)The cement driveway to 13 Fairway Street is aligned in a north-south orientation and is divided by expansion joints into segments. The A0 plan, exhibit A1, does not show the expansion joints on the driveway.
(2)Three tyre marks are recorded on the western side of the driveway. The first large tyre mark commences on the apron of the northern edge of the driveway and extends diagonally south westerly across the driveway. The other two smaller tyre marks are located to the south of the large tyre mark higher up the driveway.
(3)The distance between the commencement of the large tyre mark on the apron of the northern edge of the driveway and the western edge of the driveway apron is noted as 1800 mm. This the widest distance between the tyre mark and the western edge of the driveway.
(4)The closest piece of glass at scene marker 3 to the western edge of the driveway of 13 Fairway Street is noted as 150 mm from the western edge of the driveway. The distance between the glass pieces and the southern kerb is not recorded.
(5)The distance between the western edge of the driveway apron and the closest edge of the tyre mark on the grass verge in front of 13 Fairway Street is noted as 2400 mm.
(6)The tyre mark on the driveway at scene marker 2 is noted as 140 mm wide and the tyre mark on the grass verge at scene marker 4 is noted as 155 mm wide.
[11] Exhibit A5.
I annex the following photographs taken by Senior Constable Castle and the Castle worksheet to assist in understanding my reasons:
·Annexure 1 – a copy of the photograph at page 52 of exhibit A2 taken from the northern side of Fairway Street looking south. The property is at the left of the photo with the skip bin across its frontage. The concrete driveway and grass verge of 13 Fairway Street to the west of the driveway is on the right.
·Annexure 2 – a copy of the photograph at page 56 of exhibit A2 depicting the apron of the western side of the driveway and the grass verge of 13 Fairway Street.
·Annexure 3 – a copy of the photograph at page 67 of exhibit A2 depicting the tyre mark at scene marker 2 and two smaller tyre marks further up and close to the western edge of the driveway; pieces of glass on the grass verge at scene marker 3 and the location of the tyre mark at scene marker 4 on the grass verge.
·Annexure 4 – a copy of the Castle worksheet.
Brevet Sergeant Phillipa McGowan
In addition to photographing Troy and Jamie at the Modbury Hospital on 19 April 2014, the crime scene investigator Brevet Sergeant Phillipa McGowan stated in her statement 29 May 2014[12] she inspected and photographed the Mazda at the police property compound at Ottoway. Prints of the photographs are pages 99 to 195 of exhibit A6. It is necessary to refer to the exhibit R7 to locate the tender book page number of the photograph that corresponds the to photograph referred to in Brevet Sergeant McGowan’s statement.
[12] Exhibit A6.
Brevet Sergeant McGowan noted the front number plate of the Mazda had been altered from S892AJF with white paint to read S052AJF, as depicted in the photograph on page 142 of exhibit A6. She also noted:
(1)Dents and what appeared to be dirty shoe marks to several panels of the vehicle, including the rear left bumper bar, (depicted in photographs on pages 121 to 123 of exhibit A6), bottom of the front left door (depicted in photographs on page 125 and 127 of exhibit A6), and a dent to the front left panel (depicted in photographs on page 129 and 130 of exhibit A6). Brevet Sergeant McGowan ascribed the number 19 to the photograph on page 127 and described it as a “closer view of dent in front left door”.
(2)The front windscreen had been smashed with an impact point on the driver’s side (depicted in photographs on pages 132 to 134 of exhibit A6).
(3)The right front driver’s window had been smashed with some of the glass still attached to the window (depicted in photographs 135 to 137 of exhibit A6).
(4)A red stain on the exterior of the broken glass which had the appearance of blood (depicted in photographs 150 and 157 of exhibit A6).
(5)A kitchen knife in the pocket of the front right door (depicted in photographs 157 and 158 of exhibit A6).
(6)A red stain on the steering wheel which had the appearance of blood (depicted in photographs 160 and 186 of exhibit A6).
Troy Sage
In his statement dated 9 May 2014, the vehicle examiner attached to the Technical Examination Unit of the Major Crash Investigation Section of SA Police, Troy Sage, detailed his examination of the Mazda.[13] Mr Sage reported the Mazda was a model 3 with a build date of September 2010. It had a 4-cylinder petrol engine fitted to a 6-speed manual floor shift with front wheel drive and size 195/65 R15 tyres.
[13] Exhibit A9.
Apart from the poor condition of the tyres and insecure temporary oil filler cap, Mr Sage was of the opinion the Mazda was in reasonable condition and could find nothing mechanically wrong that would have contributed towards or caused the collision.
Senior Constable Timothy Kirkland
In his statement dated 3 June 2014, Senior Constable Timothy Kirkland detailed his attendance at Jodi’s parents’ home at Salisbury East and the locating of the Mazda behind the back wall of the house.[14] Senior Constable Kirkland noted the numbers on the front number plate had been altered, the front driver’s side window had been completely smashed in, and the front windscreen also smashed. He conducted a video walkthrough showing the location of and damage to the Mazda. Taylor is filmed next to the Mazda and can be heard talking on the video. Exhibit A10 comprises a CD copy of the footage of the walkthrough.
[14] Exhibit A10.
Taylor-Marie van den Berg
The first witness to be called in support of Troy’s case was Taylor. Taylor, who was nine at the time of the collision, was not spoken to police following the collision nor did she give evidence in the criminal trial against Jodi. I was informed that Taylor’s relationship with her mother is estranged. I expressed my concern about a young girl giving evidence in her father’s case against her mother. Senior counsel responded, “Well, she is the witness who can best inform the court as to the true state of mind of the respondent”.[15]
[15] T81.36-38.
At the time of giving her evidence, Taylor (who was born on 24 June 2004) was aged 16, in year 11, and learning to drive. Taylor is the only child of Troy and Jodi. Troy has two older children, Ashley and Jamie. Jodi has two daughters, Tanecia and Tori who are older than Taylor, and two younger children, Terraise (aged six) and Tripp-Leigh (aged five).
I note Taylor was only asked about the birth date of Terraise and not her other half siblings. Taylor agreed Terraise was born 24 August 2014 and is “from another relationship”. Jodi said in her evidence Terraise was aged six. As such, and noting there was no evidence regarding Jodi’s pregnancy, this suggests Jodi would have been approximately six weeks pregnant when she, Taylor, and Tori left the property in January 2014, approximately three months pregnant in March 2014 when she alleged Troy assaulted her at her cousin’s home, and approximately five months pregnant at the date of the collision. As there was no evidence concerning this topic, I have not considered it further.
The state of the property
Taylor said before her parents separated, they were living at the property. She was living with her mum, dad, and her sisters, Tanecia and Tori. She said her parents were not getting along before they separated, and they used to fight a lot verbally. She said her dad worked away quite a bit. She said she spent quite a bit of time with her grandparents on her mum’s side. She said the property was very messy after her dad left:[16]
A.It was very messy. It was still a little bit liveable but it just ended up getting worse and worse each time.
Q.Worse and worse in what way.
A.Like just really messy, made it [unliveable], you couldn’t walk anywhere.
She said that this occurred over a short period of time, and it was not cluttered with clothes, furniture, and rubbish when her dad was living there.
[16] T100.7-11.
Taylor could not remember how old she was when the house was getting messy, or what year she was in at school. She said that she was maybe nine years old when her parents separated. After her father left, she, her mum, Tori, and Tori’s partner were living in the property. She said they left the property because the house was really messy and not liveable. She said the photographs in exhibit A4[17] depicted the state of the property at the time they left. She was shown the video accompanying exhibit A4 and identified the various rooms in the house, including her room. Taylor said that she shared a room with Tanecia and had the top bunk bed. She said her bedroom as depicted in the video was the state it was in when she left. I asked her whether “the stuff on top of the bunk bed” as depicted in the video would have been there when she was living there and she said, “No”.[18]
[17] Exhibit A4, p 16-34.
[18] T103.20-27.
As Taylor was watching the video, she was asked:[19]
Q.… Taylor, on the floor, there are various items. Was it like that when you were living there, at the time after your dad left.
A.It wasn’t as bad, but when we left, it got worse.
Q.And is that the reason why you left the property.
A.Yes.
Taylor was asked where the “stuff” seen in the video came from. She said, “Op shops” and it was her mother who was collecting it.[20]
[19] T104.5-10.
[20] T104.15-17.
Taylor could not remember where she lived after she left the property with her mother. She said she did not attend school and she missed out on school for about a year. I asked her what year of school that was, and she said she could not remember. Taylor said she missed her father after she moved out of the property, that she wanted to see him and did not have any understanding as to why she could not make contact with him. She was asked how things were with her mother after they moved out of the property and whether they returned to normal. She said, “No” because her mother “started getting, like, just like not caring, and leaving a lot, and just – yeah, leaving me with like my grandparents and then just, like, not returning for a long time”.[21] She said her mother was not normally like that.
18 April 2014
[21] T105.23-26.
Taylor said on the day of the collision, she was in the passenger seat of the Mazda driven by her mother, and they were on their way to her grandparents’ place at Salisbury East when her mother passed the street the property is on and said she wanted to check the mail. Taylor recognised page 121 of exhibit A6 as a photograph of the Mazda driven by her mother. She said the dent above the left front wheel arch depicted in the photograph on page 125 of exhibit A6 was there before the accident. She said the dent seen on the bottom of the front passenger side door in the photograph was caused by her mother kicking the door when she found out the car was not registered. She also described damage near the rear left wheel as being caused when her mother hit the kerb of a takeaway drive‑through.
Taylor said her mother drove from the east along Fairway Street and saw a skip bin and “like started freaking out and yelling and getting angry and then she drove up to the end of the street and made a U-turn and then drove down the hill”.[22] Taylor said her mother then pulled up in front of the skip bin in the position she placed a cut-out numbered 1 on exhibit A20. She was asked what her mother was yelling. She said, “She was yelling that all her stuff’s getting chucked out and just a bunch of things. I don’t remember everything”.[23] Taylor was asked how her mother appeared and she replied, “Very angry”[24] and that she used “Like an angry tone”.[25] Taylor said “Then Dad came out” towards her window.[26] She marked on exhibit A20 with the number 2 the position she said Troy was in between the skip bin and the passenger side of the Mazda. She said when Troy came up to the window to try and talk to her, her window was closed and she did not speak to him. She said her mother told her not to speak to Troy and kept yelling: “She said she was gonna kill him and that she had a gun”.[27] Taylor said her father backed off a bit and said, “Don’t be stupid, your daughter’s in the car”.[28]
[22] T109.20-23.
[23] T112.7-9.
[24] T112.14.
[25] T112.16.
[26] T112.23-27.
[27] T113.20.
[28] T113.22-23.
Taylor said her mother started creeping forward while still yelling at Troy in the same tone. She was asked whether her mother appeared scared and she said, “No”.[29] She said her mother crept forward a little bit to the position she marked with cut-out numbered 3 on exhibit A20. Taylor said her mother was still yelling and her tone had not changed. She said her father was still following the car trying to speak to her, and she marked exhibit A20 with the number 4 as the position he took when he was trying to speak to her on the roadway. At this point in giving her evidence, Taylor became upset and the Court adjourned.
[29] T114.1.

During the adjournment, I expressed my concern about the witnesses marking the plan, exhibit A1, and suggested it would be preferrable that they gave their evidence by reference to photographs rather than a plan overview.
When Taylor resumed giving her evidence, she was taken to exhibit A2 – the photograph at page 57 which depicts the skip bin located in front of the property and the cement driveway to 13 Fairway Street. Taylor proceeded to mark on that photograph the position where her mother parked with a number 3 and where her father came to speak to her with a number 4. She said her mother crept forward again to a point, at the western edge of the driveway to 13 Fairway Street, she identified with the number 5 on the photograph. The copy of the photograph marked by Taylor is exhibit A18.[30] Taylor said her mother was still yelling and appeared angry. She said her mother was yelling at her dad but did not recall what she was saying. Taylor then marked exhibit A18 with the number 6 as her father’s position once her mother moved the car to position 5. She said at position 6 her father was still trying to talk to her and was saying, “he loves me and he misses me”.[31] Taylor was asked:[32]
[30] Exhibit A2, p 57.
[31] T121.22.
[32] T121.23-34.
Q.Did you want to speak to him.
A.Yeah.
Q.You missed him at that point
A.Yes.
Q.You hadn’t seen him for a number of months.
A.Yes.
Q.Your dad is trying to talk to, what happens next.
A.She got really angry at him for trying to talk to me and then I said I wanted to talk to him and she wouldn’t let me, and I said that I miss him to her, and she got angry at that, and that’s when she backed up and went over the kerb.
She said her mother reversed in front of the driveway. Taylor placed a cut-out numbered 7 on exhibit A20 and marked exhibit A18 with the number 7 to show the position of the Mazda on the driveway after it reversed. She said her father was off to the side when the car reversed, and she marked the exhibits A20 and A18 with the number 8 to indicate where her father was positioned. She said that her mother was still angry and yelling at that point and did not appear scared.
Taylor said after her mother moved into position number 7, her mother “went really fast forward”,[33] the engine was revving a lot, and she could not remember whether her mother drove forward or whether it was at an angle. She placed a cut‑out numbered 9 on exhibit A20 and marked exhibit A18 with the number 9 to indicate the position her mother drove forward to. She said that when her mother drove forward fast, the car hit her father, he stumbled and fell to the ground. Taylor marked exhibit A20 and exhibit A18 with the number 10 to identify the position of her father when he was hit. She was asked:[34]
[33] T123.1.
[34] T124.37-125.18.
Q.What did your mum do when she hit your dad.
A.She then went backwards, reversed.
Q.Reversed.
A.Yes.
Q.Did she say anything.
A.You’re dead.
Q.You’re dead.
A.Yes.
Q.And then she reversed.
A.Yes, to see where he was.
Q.How far did she reverse.
A.Not very far.
Q.And by not far, are we talking –
A.Maybe a metre.
Q.A metre.
A.Yes.
Q.After she reversed, what happened next.
A.And then she went forward again and ran dad over.
Q.Ran your dad over a second time.
A.No, this was the first time she ran him over.
Taylor explained that the position marked number 10 is the position her mother hit her father and he stumbled. She said he was hit when he was on the ground. She was asked to describe her mother at that point and Taylor said, “She didn’t seem scared or anything, she just seemed still angry”.[35] She said her mother was not saying anything. Taylor said that she was telling her mother to stop and that she was concerned for her father.
[35] T126.3-4.
Taylor was asked:[36]
Q.And so just going back a moment, she reversed the vehicle again.
A.Yes.
Q.And as before, what was the distance that she reversed, was it far.
A.Not very far, only just to see where he was.
(Emphasis added)
She was asked what was going on in her mind and Taylor said, “I was really scared, I tried to get out and she locked the doors but then I didn’t want to get out just in case she ran me over as well”.[37] She said her father was screaming and telling her mother to stop. She was asked whether her mother said anything when she ran her father over a second time and Taylor said, “She just kept saying that he was dead”.[38]
[36] T126.22-27.
[37] T126.32-34.
[38] T127.4.
Taylor was asked whether her mother was showing any emotion when she drove forward and collided with her father on the second occasion. Taylor said her mother was laughing. Taylor marked number 11 on exhibit A18 and exhibit A20 to indicate her father’s position at the time of the second impact.
Taylor was asked what happened when her father “got run over the second time” and Taylor replied, “She went to go over again and that’s when my brother ran out”.[39] Taylor said the Mazda was revving a lot and her mother “went forward a little bit … Maybe half a metre”.[40] She said that Jamie went:[41]
straight to the driver’s side and told her to leave. And then she went to go forward again but before she did it, he smashed her side window, and then he punched the front window – the driver’s side.
Taylor said Jamie was yelling but she could not remember his words. She placed a cut-out numbered 12 on exhibit A20 to indicate the car’s position when Jamie smashed the window and marked the number 13 on the grass verge to identify Jamie’s position.
[39] T129.10-11.
[40] T129.18, 22.
[41] T129.30-33.
Taylor said her father had not moved when Jamie came out and smashed the window. She was asked whether she was scared at all when Jamie smashed the window and she said:[42]
A.No, I was more worried about dad than anything.
Q.Did you have in your mind, at all, what he was trying to do.
A.No.
Q.After Jamie smashed the window and punched the windscreen, what happened next.
A.Then he went down to the front of the car to see dad. And then mum yelled out, ‘Look out, Jamie’. And then she went really fast forward and then hit Jamie, ran him over and dad over again.
Taylor marked numbers 14 and 15 on exhibit A20 to indicate the positions of her father and Jamie at the time Jamie was hit and her father was run over again. It is to be noted that Taylor was not asked to identify which number indicated Troy’s position and which number Jamie’s position. I infer, from the way the question was asked, 14 indicates where Taylor says Troy was positioned and 15 indicates Jamie’s position.[43] A copy of exhibit A20 and exhibit A18 marked by Taylor are annexures 5 and 6 to these reasons.
[42] T130.29-38.
[43] Counsel chose not to ask Taylor to mark exhibit A18, the photograph at page 57 of exhibit A2, with numbers 12 to 15 as she had on exhibit A20, “because of the difficulty with the size of the driveway in that area, the overlapping aspect and that was the utility of the plan and you could even see with the plan that, even still there’s a degree of overlapping that’s why I shifted away from that process”. T138.5-10.
Taylor said after her mother had collided with Troy and Jamie, “That’s when she reversed up onto the road … said, ‘You both deserve this’, and then she drove off … down the hill”.[44]
[44] T131.10-11, 18.
Taylor was asked whether she took any steps at any point to stop her mother from driving forward. She said that she pulled the gearstick down and that she had no idea what she was doing but she managed to pull it out of gear. She said she did this when her father and Jamie were at positions 14 and 15. She was asked why she did it and she said:[45]
Because I was scared that she was going to kill them and I wanted her to stop and I kept screaming at her each time that she went to keep running dad over, and I was pushing and shoving her telling her to stop. She was laughing and not acknowledging me.
[45] T132.17-21.
Taylor said after they drove “off of Fairway Street onto the main road, her mother said she wished she had a dashcam so she could re-watch it when she was sad”.[46] Taylor was asked what she was thinking at this time and she said:[47]
I was so sad, I was just crying the whole time and disgusted; I really didn’t think that would ever happen and it’s not something I wanted to ever see.
[46] T132.24-26.
[47] T132.28-30.
Taylor said her mother drove to her grandparents’ house at Salisbury East. She was asked to look at the video of body-worn camera vision[48] depicting the police attendance at the Salisbury East property and the location of the Mazda behind a brick wall. Taylor, having viewed the video, identified the location of the Mazda as, “At the back bit of the house”.[49] Taylor agreed she appears briefly in the background in the video and her voice can be heard.
[48] Exhibit A10.
[49] T136.7.
Taylor said her father did not kick the side of the car during the events on Fairway Street on 18 April 2014 and she was not, at any time, scared of him. She was asked whether she was scared of her mother and she said, “Yes”.[50]
Cross-examination of Taylor
[50] T136.31-35.
The video of the police body worn camera vision recorded by police on 23 April 2014 during their attendance at Taylor’s grandparents’ house[51] was shown again to Taylor at the commencement of cross-examination. She was asked whether at 00:51 seconds into the video she said words to the effect that there was glass on the seat. She said, “Yes”. She agreed that the glass was as a result of Jamie smashing the driver’s side window. She said she did not get glass on her. She said it got on the driver’s seat not the passenger and it got on her mother. She said she could not remember who she was speaking to in the video.
[51] Exhibit A10.
Taylor agreed at 00:58 seconds on the video she was standing on the passenger side of the car. Taylor agreed that her voice can be heard at 1:13 seconds. She was asked whether she can be heard saying, “If you also want to know a bit more information with this bit and the kick mark”. She said she did not remember. The video was played again and she agreed that she was saying, “If you also want to know a bit more information with this bit and the kick mark”.[52]
[52] T141.25-142.2.
Taylor agreed at 1:18 she is seen on the video standing next to the passenger door. She agreed after she said “… and the kick mark” she said “I was sitting there” and pointed towards the front passenger seat. Taylor also agreed she said, as can be heard in the video, “and my dad knocked on the window and he said do you want to talk to me and I said …” and then the video stops.
It was suggested to Taylor that what she was doing in the video was indicating to the police how the kick mark came to be on the front passenger door of the Mazda. She agreed she was describing to the police that her dad came up to the side of the car and asked to speak to her, and that she was going onto explain what happened after that when the video stopped. It was suggested to Taylor that, on 18 April 2014, her father kicked the passenger side of the car when she indicated that she did not want to speak to him. Taylor disagreed. She was asked what she was referring to when she indicated the kick mark in speaking to the police. She said she was talking about when her mother had kicked the car. When asked what that had to do with the police attending that night, she said the police asked how it got there. It was put to Taylor that she did not go on to describe something that her mother did, she described her father coming over and knocking on the window of the car. Her answer was, “I was young, I don’t remember”.[53]
[53] T143.29.
Taylor was asked whether she remembered her mother was charged with some offences. Taylor said she did not know, and no-one ever told her. She was asked whether anyone had told her that her mother was charged with criminal offences relating to what occurred in the collision and she said, “I don’t remember”[54] and “No … Don’t think so”.[55] She said, “I knew that she’d been speak to by the police but I had no idea about what was happening”.[56]
[54] T144.16.
[55] T144.17-21.
[56] T144.25-26.
It was suggested to Taylor that her mother was not coping emotionally after the collision and that is when her behaviour changed. Taylor denied that and said, “She was fine. She said that she wanted a dash cam to re-watch it when she was sad. She seemed fine”.[57]
[57] T145.17-18.
Taylor agreed she went to live with her father at the end of 2014 and that she had not seen her mother since that time. She agreed she had lived with her father’s family ever since. She said she first lived with her father at his uncle’s house, then with her grandmother, and with Jamie since September 2020.
Taylor denied having spoken to her father or Jamie about the fact that there was a criminal trial and they had to give evidence against her mother. She said she did not know anything about it and did not know that her mother was acquitted of criminal charges. I asked her whether she knew what “acquitted” meant and she said, “No”.[58] Counsel for Jodi said it meant “That she got off the criminal charges” and Taylor said, “Well, she wasn’t in gaol so yeah, I guess so”.[59] She was asked why she thought it had something to do with gaol and she said, “Well because if you’ve run someone over, clearly you should be going to gaol, and she didn’t”.[60] She was asked how she knew her mother did not go to gaol and she said:[61]
A.Because I was told and –
Q.Who told you that.
A.My dad.
Q.So there was some discussion about the fact that there was a criminal trial.
A.Yeah, and that’s about all.
[58] T147.6-7.
[59] T147.9-10.
[60] T147.12-13.
[61] T147.15-20.
It was suggested to Taylor that her father was very angry that her mother was found not guilty and she said “I don’t remember”.[62] She was asked what it was her father said to her about the fact that her mother was not going to gaol. Her answer was:[63]
A.Well we spoke about how I haven’t seen her in ages, and I just wanted to know what was happening and where she was.
Q.What did he say.
A.He said that he doesn’t know but he knows that she’s not in gaol.
Q.What did that mean to you.
A.I just brushed it off my shoulders, didn’t really pay attention to it. She didn’t treat me right so I didn’t take it to heart or anything.
[62] T148.1.
[63] T148.4-13.
Taylor agreed that she was upset and is still upset with her mother for not caring for her and leaving her at her grandparents’. She denied having spoken with Jamie about the criminal trial. She also denied having discussed with Jamie or her father what happened on 18 April 2014. She was asked:[64]
[64] T148.33-149.4; T149.19-29.
Q.So you say that, on no occasion between 2014, when this incident happened, and today, when you’re coming to give evidence, that you’ve never spoken to your dad about what happened that day.
A.Maybe one time but I get heaps emotional about it, and they know that.
Q.When was the ‘maybe one time’.
A.Don’t remember.
Q.What was spoken about.
A.I don’t remember. I just remember it being brought up.
…
Q.What did you discuss about the incident.
A.I just, like, asked, like, if, like, how long it was until the ambulance come and got them, and all that.
Q.Did you tell him anything about what your mum was saying in the car, as you’ve described in your evidence.
A.No.
Q.You didn’t.
A.No – yes, about the dash cam, and that’s about all.
Q.You told him about that.
A.Yes, ‘cos that made me sad.
The occasions of physical violence
Taylor said her father would come back from time to time after her parents separated to get things and, on occasion, her mother would not let him in. She agreed that there was one occasion when they were living at the property that the police attended. She could not remember whether there had been any violence between her mum and dad on that occasion.
Taylor was asked what year she was in at school in 2013 and she said, “Year 4, I think”.[65] She was asked whether in 2014 she was in year 5 and she said “No … I don’t remember”.[66]
[65] T152.16.
[66] T152.18, 20.
It was put to Taylor that Troy had come over to see her, they had pizza for dinner, watched a movie, and when her mother asked him to leave, he became violent. Taylor said she did not remember him being violent. It was put to her there was an argument between her parents and she said, “I think it was about the house because it got messy and dad was just asking why”.[67] She was asked whether her father was trying to speak to her mother about their relationship and she said she did not think so. She denied there was any physical altercation between them.
[67] T154.2-3.
Taylor denied her father was standing in the alcove of the house and picked up an owl statue and threw it at her mother and Tori. She did not recall him throwing a statue or there being an owl statue at the house. She did recall an incident when he came over, had pizza and watched a movie. She agreed there was an argument but then he left because she had a friend over and it was embarrassing.
Taylor recalled an incident at her mother’s cousin’s house where her father turned up and she was told to stay inside the house by her mother’s cousin. She said she did not see that her father opened the screen door and pulled her mother outside. She did not hear her father speak. She denied seeing her mother being punched or having her hair pulled. Taylor denied being out the front and screaming when it occurred. She agreed that her mother had blood over her face and on her hands. She said she asked her mother how she got blood on her, and her mother said, “Don’t worry”. It was suggested to Taylor that after the incident she said to her mother that she did not want to see her father anymore. Taylor said, “No, she stopped me from seeing him”.[68]
[68] T162.4.
Taylor denied saying to her mother she was scared of her father and denied realising her mother had been assaulted by her father. She said her father was never violent towards anyone.
The state of the property
Taylor was asked about the video of the state of the property.[69] It was suggested to her that whilst the house was not tidy when she and her mother left, it did not look anything like the state seen in the video. Taylor said, “Yes, it did”.[70] She was not aware her father had reported to the police that the house had been vandalised after they moved out. She agreed she was not able to take her personal belongings when they left. She was asked whether she knew why that was. She said her mother did not say, they just left. She agreed her mother had purchased a number of baby toys for Tori’s baby that were left inside house.
[69] Exhibit A4.
[70] T163.19.
Taylor agreed that the boarding on the window depicted in the photographs at page 18 of exhibit A2 was not on the house when they were living in it. Taylor asserted the pram seen down the side of the house in the photograph at page 18 was stolen by her mother.
Taylor agreed that they moved into the women’s shelter at Campbelltown when they left the house. She said she did not give that answer when she was giving her evidence-in-chief because she forgot. It was suggested to Taylor that they moved into the women’s shelter because her mother was scared of her father. Taylor said, “No, she said it was because she couldn’t afford anywhere else”.[71] Taylor said that they were able to take a kitten to Campbelltown, it was the only animal they were able to take, and they snuck it in. She agreed they moved from the Campbelltown accommodation and her mother told her it was because her father found out where they were living. She agreed they moved to another house at Woodville. She said her mother told her she had seen Troy’s car at Campbelltown and that it was not safe.
[71] T167.34-35.

Taylor agreed she was enrolled at Woodville Primary School in 2014 and she went there for a short period of time. She could not remember where she went after Woodville Primary and she was not living at the Woodville address when the events of 18 April 2014 happened.
18 April 2014
Taylor maintained her mother had not come from the eastern end of Fairway Street on 18 April 2014. She said that she could see her father throwing things into the skip bin from the Mazda when they were on Fairway Street. She agreed her mother was very upset about things being thrown into the skip bin. Taylor agreed that as her mother drove down the hill past the skip bin, she yelled words to the effect, “That’s not your stuff”.[72] She was asked whether one of the things her father was throwing in the skip were toys that her mother had bought for Tori’s baby and Taylor said, “She didn’t buy them”.[73] She agreed that throwing the toys into the skip bin was upsetting her mother, who said words to the effect “‘Don’t throw my stuff out, that’s all I’ve got”.[74] Taylor then said, “I don’t remember. I don’t remember her saying that. I just remember her yelling”.[75] She then agreed her mother was yelling about the things her father was throwing into the bin, that it was her stuff, and not to throw it out.
[72] T172.4-7.
[73] T172.14.
[74] T172.26-27.
[75] T172.30-31.
Taylor was asked about her evidence regarding the Mazda stopping in front of the skip bin and Troy coming to the passenger side of the vehicle to speak to her. She said in response to her mother saying she was going to kill Troy and that she had a gun, Troy said, “Don’t be stupid. Your daughter’s in the car”[76]. She said that her mother was yelling through a closed window. Taylor said she was clearly able to hear what her dad was saying. She said both Troy and Jodi were yelling.
[76] T174.1-2.
Taylor denied having had a conversation with her father or Jamie about a gun after the events of 18 April 2014. It was suggested to her that at no point did her mother say anything about having a gun or that she was going to kill her father. Taylor maintained that her mother did say both those things.
It was put to Taylor her mother stopped the Mazda just past the driveway of 13 Fairway Street. Taylor maintained her mother parked in front of the skip bin and that the first time her father approached her was when the car was stopped in front of the skip bin. It was put to her that when her father asked her whether she wanted to speak to him she said “No” and turned her head away. Taylor denied this and said she did want to speak to him.
It was suggested to Taylor her father came to the window side of the Mazda and said to her, “‘Do you want to see dad?” and she said, “Why are you doing this to me and mum?”.[77] Taylor disagreed and said when she was trying to speak to her father, her mother was grabbing her face to turn her away from him and locked the doors.
[77] T176.22-24.
Taylor said she could not see Jamie when her father was speaking to her and the first time she saw him was when her father was run over in the next-door neighbour’s driveway.
It was put to Taylor when her father asked whether she wanted to speak to him and she said “No”, her father became angry and kicked the passenger side of the vehicle. Taylor said “No”.[78] It was put to her that the damage to the side of the car was not caused in the way she described with her mother kicking the vehicle. Taylor said, “Yes, it was”.[79] It was suggested to her after her father kicked the vehicle, he came around the front of the car to the driver’s side of the vehicle and was yelling at her mother. Taylor said “No, he was on the passenger side” and she denied that he hit or punched the driver’s side mirror.[80] She denied Jamie came to the driver’s side of the car to try and restrain her father and drag him away. Taylor denied that, after Jamie restrained her father and tried to drag him away, her father broke free.
[78] T178.1-6.
[79] T178.10-12.
[80] T178.17-27.
Taylor denied her mother was panicking in the car and said her mother was yelling. Taylor denied her father appeared quite scary at the window and said, “No, he was trying to talk to me”.[81] Taylor also denied he came around the front of the vehicle. It was suggested to her that whilst he was at the front of the car, her mother accelerated in reverse and the front wheel of the car went over the gutter. Taylor agreed but denied that her father was at the front of the vehicle and said when her mother reversed her father was positioned on the passenger side of the car. It was suggested to her that as her mother was reversing quickly, her father came around to the passenger side of the car and was knocked to the ground. Taylor said, “He was already at the side of the car”.[82] She agreed in that manoeuvre he was knocked to the ground. It was put to Taylor her mother was actually looking backwards when reversing, and Taylor said, “No, she was looking in front of her”.[83] She agreed when her mother stopped the vehicle it was facing towards the driveway. It was suggested to Taylor at that point Jamie came to the driver’s window and started yelling. Taylor said, “No, he didn’t come [‘til] the second time”.[84] It was suggested to her that Jamie had already been over to the driver’s side of the Mazda when he was trying to restrain her father. She said that she did not remember, and it was when he came over to the driver’s side and was yelling that he smashed and ripped out the driver’s side window. She said that the glass shattered on her mother, but not on her.
[81] T179.15.
[82] T180.2.
[83] T180.8.
[84] T180.19.
It was suggested to Taylor that there was complete hysteria inside the car: she was hysterical and her mother was hysterical. Taylor said, “No, I was more worried about my dad more than anything”.[85] She said she was not concerned about Jamie’s actions on the driver’s side of the car. She said she was screaming at her mother and she denied her mother was panicking.
[85] T181.30.
Taylor said her father did not go under the vehicle when he got knocked in the reverse manoeuvre nor was he dragged by the Mazda.[86] She said after the third time that her mother hit her father, she manoeuvred the gearstick because she thought her mother was going to kill him.
[86] T182.2-6.
It was suggested to Taylor that at no time was her mother laughing during the collision and at no time did her mother say words that indicated that she was intentionally trying to hit her father or Jamie. She maintained that her mother was laughing and uttering such words.
Taylor agreed after the initial reverse manoeuvre the next movement of the Mazda was that it went forward down the driveway. It was put to her that when the car went forward, her mother was looking out the back of the car as she would if reversing. Taylor said, “No, she was looking in front of her”.[87] Taylor maintained that she was looking at her mother at that time. It was suggested to her that she was not focussing on what was happening with her father. She said she was looking at both her mother and her father. She said when the Mazda moved forward, her father was under the car and Jamie was also hit. She said Jamie was hit by the front of the car. Taylor was asked if Jamie said he was hit by the driver’s side of the vehicle, would he be wrong. Taylor’s response was, “He went to go look for dad to see if he was okay. That’s what I remember”.[88] She was asked:[89]
[87] T182.23.
[88] T183.5-6.
[89] T183.7-17.
Q.Is that something he’s said to you, or something you remember.
A.It’s something I remember. I was young at the time. This was a long time ago.
Q.You were very young at the time, you were only nine years of age.
A.Yes.
Q.I suggest to you that after your mum accelerated up the driveway, a short way, she then put the car into reverse and reversed across Fairway Street.
A.No.
(Emphasis added)
It was put to Taylor there was only one movement forward of the car down the driveway. Taylor maintained there were three. Taylor denied her mother drove back up the hill the same way she had come down Fairway Street when she arrived. Taylor denied her mother was in a state of panic and shock after they left Fairway Street.
It was put to Taylor her mother did not say anything about a dash cam in any conversation. Taylor said, “Yes, she did, I was there, I remember”.[90]
[90] T184.6.
Taylor maintained there was glass only on her mother’s side of the Mazda and said she did not remember any bleeding.
It was put to Taylor that after the collision in Fairway Street, her mother drove straight back to her grandparents’ house and that she – Taylor – was in a state of panic. Taylor denied she was in a state of panic. She denied that once back at her grandparents’ house, she was very upset and that her mother spent some time holding her and trying to calm her down.
Taylor agreed that she continues to be upset with her mother about not looking after her, and that she is aware that her father is seeking compensation in these proceedings for the injuries he suffered. It was suggested to Taylor that she has made it sound as if her mother intentionally drove at her father to assist her father’s claim for compensation. Taylor denied that and denied that she had done so because she is angry with her mother.
Taylor agreed that she lived with Jamie and that she had been going with him to speak to the lawyers. She maintained she had not ever discussed what happened on 18 April 2014 with Jamie and that she had only discussed what happened with her father when she first saw him after the collision.
Assessment of Taylor
Troy relies on Taylor’s evidence as establishing “true state of mind of the respondent”.[91]
[91] T81.36-38.
Taylor, at the age of nine, witnessed the traumatic events involving the running over of her father and brother by her mother. Taylor’s evidence must be assessed against the complexity of her family dynamic and her young age at the time of the collision. She said in giving evidence, “I was young” and “this was a long time ago”. She was removed from Jodi’s care into the care of Troy eight months after the collision. She has had nothing to do with Jodi and is understandably hurt and affected by what she perceives to be Jodi’s neglect of her. She became teary whilst giving her evidence, which is not unexpected when being asked questions about traumatic events involving her estranged parents.
Taylor did not resile from her evidence that Jodi said that she had a gun. Troy and Jamie both gave evidence to the effect Jodi did not mention a gun.
I do not accept Taylor’s evidence about not refusing to speak to Troy and her evidence that Jodi is responsible for the “kick mark” to the Mazda.
Taylor gave evidence that during the events of 18 April 2014, “I was so sad, I was just crying the whole time and disgusted; I really didn’t think that would ever happen and it’s not something I wanted to ever see”.[92] These are not the sentiments of a nine-year-old. They are retrospective sentiments of a 16‑year‑old. The tone of Taylor’s voice recorded on 23 April 2014 at the time police attended her grandparents’ home is not one of sadness, distress, and disgust. Rather, it is the tone of a nine-year-old child keen to point out the kick mark and provide details as to how it was caused. I do not accept Taylor’s evidence regarding what she told police about who made the “kick mark”. She asserted the police wanted to know how it was caused. My impression is that the police were not engaging with Taylor. I infer, having regard to the whole of the evidence, that Taylor was describing to police how the “kick mark” was caused after Troy asked whether she wanted to speak with him. When Jodi’s counsel suggested to Taylor that she did not go on to explain to police that Jodi had kicked the car but rather she went on to detail something her father did, she said “I was young, I don’t remember”.[93]
[92] T132.28-30.
[93] T143.29.
Troy gave evidence the state of the property as seen on the video was “nothing like” the state it was in when Jodi was living in it with Taylor and Tori. I do not accept Taylor’s evidence to the effect the state of the property depicted in the video was the “unliveable” state they left it in. Taylor did not know where she and Jodi lived after leaving the property, Taylor then recalled in cross‑examination it was a women’s shelter in Campbelltown, which they moved from because her mother told her she had seen Troy’s car and it was not safe to remain there.
Taylor’s evidence about observing her mother being covered in blood following Troy’s attendance at her mother’s cousin’s house was, on my assessment, evasive.
Taylor asserted that she was not frightened by anything her father or brother did on 18 April 2014, yet it was Jodi’s behaviour that scared her. Troy gave evidence to the effect it was his impression Taylor was upset with both him and Jodi, and he recalled Taylor saying words to the effect “Why are you doing this to me and mum”.[94] I do not accept Troy’s kick to the front passenger door would not have been frightening. Nor do I accept Jamie’s actions in pulling out the driver’s door window and smashing the windscreen would not have been frightening.
[94] T228.32; 283.5.
I find it hard to accept, given how rankled Jamie is about Jodi’s acquittal of the criminal charges, that Taylor has not discussed with him or been present when he has discussed with others the events of 18 April 2014 and his views about Jodi. Likewise, Troy. It was my impression that Taylor has clearly sided with her father and brother against Jodi. She expressed the view, “you’ve run someone over, clearly you should be going to gaol, and she didn’t”.[95] She maintained Jodi said she was going to kill Troy. She asserted Jodi reversed on two occasions so as to “see where Troy was” and then aim the car at him. Whilst the video of police attendance at her grandparents’ house is brief, I note there is no recording of her conveying any of the information regarding what she asserts she saw her mother do and heard her say before, during, and after the collision to the police, rather she focussed on the “kick mark”.
[95] T147.12-13.
Having carefully considered Taylor’s evidence, I am unable to accept her as a credible, reliable witness and I do not accept her evidence unless it is supported by other evidence I accept.
Troy Hutchinson
Troy was born on 30 December 1975. He left school after completing year 11 and worked variously as a brickie’s labourer, a sheet metal worker, and a boilermaker. In April 2014 he was working for Exact Mining as a boilermaker on fly-in, fly-out basis.
Troy commenced a relationship with Jodi in the early 2000s and they married in 2012. Troy is the father of Taylor and two older children, Ashley (born 11 February 1993) and Jamie (born 17 August 1994).
Troy bought the property in 2008, and the Mazda in 2010. He was living in the property with Jodi, their daughter Taylor, and one of Jodi’s elder daughters prior to his separation from Jodi.
The dirty joke incident
Troy described his relationship with Jodi in the years leading up to April 2014 as toxic and said they had arguments every day. He detailed an incident involving a message on his phone in May 2013. He said, “There was a silly message on the phone, she got upset about it”[96] and they had an argument about it. He said he could not distinctly remember what happened physically between them. He said Jodi “tried to grab the phone off me a few times. That’s when I left I think”.[97] He said he did not “do anything towards her”.[98] It was the commencement of their separation, and he went to live with his uncle. He said he left the Mazda behind so that Jodi could take Taylor to school.
[96] T202.5-6.
[97] T203.12-13.
[98] T203.16-17.
Troy continued to pay the mortgage for the property and the utility bills. He gave Jodi cash every week. He transferred money to her or let her take it straight out of the bank.
Para Vista Shopping Centre Incident
Troy said after he and Jodi separated in 2013, there was an incident at the Para Vista Shopping Centre. He had gone to the shopping centre to buy some smokes. He identified where he parked on an aerial photograph of the Para Vista Shopping Centre.[99] He described running into Jodi near the first shop as he was walking up the path away from the carpark. He said she was coming from the other direction and wearing a light-coloured hoodie. He described how she pulled a knife out of her pocket and told him she was going to stab him with it. Troy demonstrated holding a pen in his hand at a 45-degree angle, the position he said Jodi held the knife in. Troy said he grabbed Jodi’s hand and pushed her away from him causing her to fall sideways and hit her head on the concrete. He said after she had fallen and hit her head, he saw her get up. He left and went straight to the Holden Hill police station. He said nothing came of the incident.
The incident at Jodi’s cousin’s house
[99] Exhibit A21.
Troy was asked about another the allegation made by Jodi that he assaulted her and dragged her by her hair. He denied there was any such occasion but said there was an incident where he did grab her by the hair. He said it occurred at Jodi’s cousin’s house a couple of months before he got run over. He said he went to the cousin’s house because Jodi had called him up, and he went there to see Taylor. He said he arrived at Jodi’s cousin’s house and Jodi was on the front lawn. Troy said that he had just come from visiting his elder daughter and Jodi was “carrying on about being a paedophile with my daughter which was quite annoying”.[100] He alleged Jodi said “What, are you fucking your daughter”.[101] In response, Troy said he told Jodi to “Fuck up” and said he just wanted to see Taylor. He asserted Jodi kept carrying on about it and then she got up, went towards him and he “wasn’t going to be attacked by her anymore”.[102] He said he grabbed her by the hair and pushed her away from him then got in his car and left. Troy denied hitting Jodi, pushing her over or dragging her hair at any point on this occasion.
The state of the property
[100] T207.19-20.
[101] T207.22.
[102] T207.25-28.
Troy said after he left the property on a permanent basis, he went back from time to time to see Taylor. He said he had left all of his possessions at the property and Jodi would not let him take anything from the house. He denied collecting any personal items at any of his visits. Troy asserted that when he did go back to the property while Jodi was still living there, the yard was getting worse and worse with rubbish. He said he did not see inside the house until after Jodi had left.
Troy became aware Jodi had left the property when the neighbour from 13 Fairway Street told him.
Troy said after Jodi left, the yard was putrid with “all rubbish; old toys, old bags of rubbish, just stuff that had been collected from like wheelie bins”.[103] He said “Everything was just everywhere” inside the house.[104] He said he changed the locks to the house, and he spoke to the police about going back to the house. He said he was advised by police “if he changed the locks on the property and he was at the property, no-one could take it from him because it was his”.[105]
[103] T210.3-4.
[104] T210.10.
[105] T210.21-27.
Troy was told by a neighbour that the house was being broken into. He reported the matter to the police and attended the house to see the damage.
Troy put up boards on the walls, screwed the doors shut, and did what he could to secure property. He said on the occasions he went inside the house it was putrid and in state of squalor. He said it was disgusting with dog faeces, maggots, and personal effects everywhere. He thought Jamie went with him once or twice when he boarded up the house. He said there came a point where he decided he would clean up the house with a view to selling it. To that end he organised for a skip bin to be delivered so he could start cleaning up on 18 April 2014.

In driving down Fairway Street on 18 April 2014, Jodi owed a duty of care to take reasonable care to avoid causing injury or harm to other road users.[591]
[591] Civil Liability Act1936 (SA), s 31.
The question for my determination is has Troy established Jodi intentionally drove into collision with him or, as Jodi alleges, did the collision occur while she was in a state of panic brought about by Troy’s conduct and as such, she did not owe him a duty of care or did not breach any duty of care.
In determining Jodi’s duty of care at the time of the collision, I must consider “the totality of the relationship between the parties, not merely the foresight and capacity to act on the part of one of them”.[592]
[592] Miller v Miller (2011) 242 CLR 446 at [46], referring to Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540.
The relationship between Troy and Jodi
The relationship between Troy and Jodi was toxic in 2013 and had not improved as at 18 April 2014.
Troy gave evidence the police had attended the property on a few occasions. Troy and Jodi are reported as “victims of aggravated assault (no weapon) against child or spouse” in each of the police incident reports dated 10 May 2013.[593] Police recorded Jodi had stated there was pushing from both parties, but that Troy was the instigator by pushing her on her shoulder. Police also recorded Troy had reported the argument had got so heated that at one stage he had to push Jodi away from him. Troy further reported they had pushed and shoved each other and at one stage Jodi had tried to gouge his left eye.
[593] Exhibit R64.
Troy gave evidence that he was in hospital in September 2013 receiving treatment for a non-malignant tumour. He said Jodi visited him uninvited. Either Troy or someone who knew he was undergoing inpatient treatment must have informed Jodi he was in hospital in September 2013. Jodi said she attended the hospital to find out what was wrong with him as he was Taylor’s father.
Troy said there was an altercation between Jodi and his elder daughter which pissed him off, but he was not angry. Jodi reported the matter to police. The relevant police incident report recorded an incident at the Queen Elizabeth Hospital on 23 September 2013 reported by Jodi. The report details that Jodi said she attended the hospital to visit her ex-partner, she was sitting quietly in the hospital room when her ex‑partner’s daughter was verbally abusive and kicked her. The report states Jodi “was unable to tell police where about she was kicked”.[594]
[594] Exhibit R64.
Two days after the date of the Queen Elizabeth Hospital incident, Troy reported the incident at the Para Vista Shopping Centre to police. I find, as recorded in the police incident report dated 25 September 2013 prepared following Troy’s attendance at Holden Hill police station, Troy attended the Para Vista Shopping Centre looking for Jodi. It is recorded Troy told police he got into a verbal argument with Jodi and he “saw that she had a knife” and police were “unable to ascertain in what capacity and what type of knife. He stated that he then grabbed her and threw her on the ground backwards. She landed hitting her head and this caused a cut to the back of her head where she was bleeding”. Troy is reported as being “not so cooperative … was quite vague and refused to provide much more information…”.[595] It is not recorded in the police incident report that Jodi pulled the knife out of her hoodie and told Troy she was going to stab him as he alleged in evidence before me. Nor is it recorded, as Troy told the criminal trial, that he was driving past the Para Vista Shopping Centre when he saw Jodi in the Mazda that was unregistered and he did not want her to have it.
[595] Exhibit R64.
Jodi denied having a knife in her possession as she made her way from where she had parked at the Para Vista Shopping Centre. She said she was aware Troy was looking for her. However, the interaction at the shopping centre evolved, Troy gained the upper hand by pushing Jodi away from him, causing her to fall and hit her head on the concrete. Having regard to the account recorded in the police incident report and the evidence he gave in the criminal trial, I do not accept Troy’s evidence in this trial regarding the events prior to him pushing Jodi to the ground.
Troy agreed in cross-examination that he had not seen Taylor prior to Easter 2014 since Jodi and she had moved from the property, a period of about four months. He also agreed Jodi was not contacting him and inviting him to have contact with Taylor.[596] He said:[597]
[596] T345.18.
[597] T345.19-24.
A.No, definitely not. She kept her from me as long as she could.
Q.I beg your pardon.
A.She kept her from me as long as she could.
When it was put to Troy that his evidence to the effect Jodi had called him to come and see Taylor at her cousin’s place was not true, he said:[598]
A.No you’re contradicting me and making me look like a dickhead.
He asserted, “At no stage of our relationship did I [ever] stop my daughter from seeing her mother or did she stop her from seeing me. Only after the accident”.[599] This evidence is at odds with his evidence that he engaged a private detective to find out Taylor’s whereabouts.
[598] T346.5-29.
[599] T346.27-29.
Troy asserted that during the incident at Jodi’s cousin’s house, Jodi kept carrying on about him being a “paedophile” with his daughter, Ashley, and that she got up and went towards him. He said “wasn’t going to be attacked by her anymore”[600] and he grabbed Jodi by her hair and pushed her away from him, then got in his car and left. Troy denied hitting Jodi, or pushing her over, or dragging her hair at any point on this occasion. I query why he needed to grab Jodi’s hair to push her away.
[600] T207.25-28.
Jodi’s evidence about this incident involves Tori attempting to stop Troy and Jodi’s concern about Tori’s involvement because Tori was pregnant. That cannot be correct because Tori’s baby was born December 2013. However this incident transpired, it would appear by reference to Troy’s evidence that he again gained the upper hand, grabbing Jodi’s hair and pushing her away. Taylor said she noticed Jodi was bleeding after her father left, but did not think her father had assaulted her. I do not accept Troy’s evidence regarding this incident and suspect he was minimising his physical interaction with Jodi. The evidence about this incident permits me to find that Troy gained the upper hand, grabbed Jodi’s hair, and pushed her away.
Police observed Troy send a text to Jodi on 14 January 2014 demanding the return of the Mazda within 24 hours, failing which he would report it stolen.
Jodi said she had to move from the women’s shelter at Campbelltown for fear Troy had found out where she was. Taylor gave evidence she recalled Jodi saying they needed to move from the women’s shelter at Campbelltown because she had seen Troy’s car and that it was not safe.
Jodi said she received a text from Troy when she was living at a Woodville Gardens safehouse telling her he knew where she was living, having obtained intelligence from the private detective he had engaged. Troy admitted he engaged a private detective to ascertain Taylor’s whereabouts. Jodi said she had not even been allowed to tell her parents the address of the safehouse.
Jodi’s evidence was to the effect she was scared of Troy, particularly when she was on her own with him.
In the seven months before 18 April 2014:
(1)On 25 September 2013, Troy had gone looking for Jodi locating her at the Para Vista Shopping Centre where he pushed onto the ground, causing her head to bleed.
(2)Jodi had left the property because, on her evidence, she did not feel safe and moved into a women’s shelter.
(3)Troy had sent a text demanding to Jodi the return of the Mazda within 24 hours or he would report it stolen.
(4)Troy engaged a private detective on his version to locate Taylor which resulted in him locating Jodi at the safehouse.
(5)On Troy’s version, he grabbed Jodi’s hair and pushed her away at Jodi’s cousin’s house. Jodi alleged she was bleeding after this altercation. Taylor gave evidence she saw blood over her mother’s face and on her hands after her father’s visit but did not think her mother had been assaulted by her father.
(6)Troy had followed the Mazda on an occasion it was being driven erratically by someone other than Jodi.
I have no doubt Jodi’s behaviour prior to 18 April 2014 and the state of the property angered Troy. I am unable to determine the state Jodi left the property in or the impact of the acts of vandalism Troy referred to. I do not accept Troy’s evidence that Jodi was responsible for the state of the property or the vandalism as there is no other evidence I am prepared to accept supporting his allegations regarding the property. It is of note there is no dispute Jodi took umbrage at her possessions being thrown out on 18 April 2014. I query why she would vandalise the property which still held her clothing and other possessions.
The arrival of the Mazda
Where did it stop?
Jodi drove to the property to collect her mail on 18 April 2014. She gave evidence she thought it was safe to proceed along Fairway Street because there were no cars she recognised as she approached the property. Upon seeing Troy outside the property, she shouted to him to stop throwing her property out.
On his evidence, Troy was beyond an amicable discussion about property settlement. The state of the property on 18 April 2014 was appalling and he clearly attributed it to Jodi.
I am unable to find Jodi stopped adjacent to the skip bin, as alleged by Troy and Jamie, and reversed back at them. This allegation is denied by Jodi, and Taylor’s evidence does not support it. Further, it is not referred to by Troy in his description of the collision in the Allianz claim form.
The approach by Jamie and Troy
Having told the “boys” to ignore Jodi, Troy said he instructed Jamie to go to the Mazda and tell Jodi to leave.
Intention
Jamie gave evidence he “honestly thought” Jodi had a gun. As cross‑examination of Jamie revealed, Jodi did not mention a gun nor, for that matter, a knife.
I have indicated I do not accept Taylor’s evidence that when Jodi pulled up in the Mazda and Troy came up to the front passenger window Jodi was yelling and said, “She said she was gonna kill him and that she had a gun”.[601]
[601] T113.20.
Troy gave evidence he approached the driver’s window of the Mazda when he walked around the bin after Jamie told him that she had a “piece”. He said he leaned towards the window and said to her, “well, if you’ve got a gun, shoot me then”.[602] When it was put to him he did not believe she had a gun, he said:[603]
She might have. She’s hung around with pretty unsightly people, so who knows? She had a knife.
He agreed Jodi did not mention a knife.
[602] T300.16-17.
[603] T300.19-20.
I find Jodi did not mention a gun or, for that matter, a knife on 18 April 2014. I find that Troy and Jamie were not aware of the presence of the knife in the Mazda on 18 April 2014.
As stated earlier in these reasons, Troy has not adduced clear and cogent evidence of a threat or verbal intention by Jodi. My discussion of Taylor, Troy, Jamie, and Daniel’s evidence discloses the inconsistent, contradictory, biased, and unreliable evidence they gave. I am satisfied Jodi did not utter any words or engage in any conduct from which it can be inferred she intentionally collided with Troy.
The highly charged, volatile environment
There can be no doubt the events that unfolded consequent upon Jodi’s arrival in Fairway Street on 18 April 2014 occurred quickly, in a highly volatile hostile environment, against a background of acrimony and mutual verbal abuse between Jodi and Troy and the two previous occasions where Troy had grabbed and pushed Jodi.
There is no evidence Jodi intended to get out of the car. She was hurt and angry about her property being thrown out. I query why Troy needed to engage with her at all.
Troy agreed that he gave evidence in the criminal trial that he was angry, yelling and looking at Jodi, and did not know where Jamie was whilst he was at the driver’s side window before walking around the front of the Mazda to Taylor, who was in hysterics.[604]
[604] Exhibit R29; (DCCRM-15-139 T155.21-25).
Time period over which events in issue took place
Troy’s senior counsel referred to this matter in opening as a case involving events that occurred in 2014 that occurred only in the space of a few minutes where all the witnesses and Troy were in a state of continual movement.
Troy was asked whether his recollection of the whole thing is now quite blurry. He said:[605]
At the time it was, when I got ran over. Course it was. It happened like that (DEMONSTRATES). I know what happened but, like, all these little incidents you’re saying when the car turned this way and this way and reversed this way and where was this and who was there, like, all of these things, you know, I couldn’t tell you exactly what happened. I could tell you roundabout but I’ve got no reason to bullshit to you. That’s what happened.
Troy was asked whether he was demonstrating that it all happened within a second or two. He said, “Pretty quickly. You know, what time it takes to run me over and reverse off of me and whatever. Time stood still, basically”.[606] He agreed that it was all happening with lots of confusion. He agreed that he was yelling and was being yelled at as well. He said Jodi was yelling, Taylor was crying, and he did not hear anything Jamie said.
[605] T311.15-23.
[606] T311.30-32.
Jamie said it all happened within seconds.[607]
[607] T788.23.24; T782.
Jodi gave evidence that “This happened within seconds, this whole incident. I’ve got my daughter screaming next to me”.[608]
[608] T778.23-24.
It is to be expected, as Troy’s senior counsel contended, the memories of the witnesses as to their precise movements and that of the Mazda do not neatly dovetail. It is also not surprising that there are gaps in the recall of some of the witnesses. In arriving at my findings and conclusions, I have kept in mind the recollection of the witnesses would have diminished or been affected by the passage of time, in particular, their recollection of the position of the Mazda and pedestrians at crucial moments.
As Jodi said when asked where she hit Jamie, “I can only give an estimate of where I saw them, I know they were to the left”.[609]
Did Troy stand at the front of the vehicle?
[609] T814.22-23.
I accept Jodi was “not that scared” before Troy kicked the front passenger door as she had their daughter in the Mazda with her. As I stated earlier in these reasons, I do not accept Troy’s evidence that he did not walk around the front of and was not at the front of the Mazda.
I am satisfied Troy kicked the front passenger door in anger. I accept this violent reaction “really scared” Jodi because Taylor was his “little girl, and all she said was that she didn’t want to talk to him”.[610] Jodi heard the kick and felt the car move. Jodi said she was scared, “I just seen my husband kick a door, a kick directed at my door which I thought he would never have done, me, yes, not my daughter”.[611] I infer Troy had not previously directed his anger toward Taylor.
[610] T693.35-37.
[611] T803.6-8.
I accept Jodi’s explanation for not driving straight down the street upon Troy inflicting the kick. She said she:[612]
… was processing that he just – to me that kick was directed at his own daughter, she was on the other side of the door, I was processing that. Taylor-Marie started freaking out and it happened within seconds.
I accept Troy ran around the front of the Mazda to the driver’s side because he was angry. I accept Troy hit the driver’s side vision mirror in his anger. I accept that Jodi was attempting to reassure Taylor. I accept that Troy’s behaviour toward Jodi was intimidating and aggressive, which including kicking the car, punching the side mirror and yelling, so much so that Jamie saw the need to grab him in an attempt to remove him and diffuse the situation. I accept Troy, in his anger, broke free of Jamie’s hold and moved to the front of the Mazda. I accept Jodi’s explanation for not driving forward away from the scene when Jamie grabbed Troy. She said she was going to leave but it happened within seconds, “He ran around and hit the mirror then Jamie was there, grabbed him, he broke free, then he’d run around the front of the car”.[613] I accept Troy was “looking straight at” Jodi from his position at the front of the Mazda preventing Jodi from driving forward. I accept Taylor was screaming.
[612] T780.12-15.
[613] T782.38-783.3.
On my assessment, at this point it was more probable than not Jodi was in a state of panic fearing for her safety and that of Taylor. In such circumstances, Jodi did not owe Troy a duty of care. The relationship between Troy and Jodi, at this point in time, to which Troy had substantially contributed, was not one in which Jodi owed him any duty of care.[614]
[614] Cusack v Stayt [2000] NSWCA 244 at [28].
Findings
I find:
(1)Troy told police he had gone looking for Jodi on 25 September 2014, locating her at the Para Vista Shopping Centre where he pushed onto the ground, causing her head to bleed.
(2)As at 18 April 2014, Troy had not had contact with Taylor since Jodi left the property, a period of some four months. Troy was of the belief Jodi kept Taylor from him as long as she could.
(3)Troy engaged a private detective, on his version, to locate Taylor, which resulted in him locating Jodi at the safehouse at Woodville.
(4)Troy grabbed Jodi’s hair and pushed her away at Jodi’s cousin’s house.
(5)Troy had not directed any violence at Taylor prior to 18 April 2014.
(6)Troy blamed Jodi for the appalling state and vandalism of the property.
(7)Jamie was of the view Jodi was a criminal who had gotten away with attempted murder.
(8)By reference to the question put to Jodi in cross-examination to the effect that her conduct on 18 April 2014 constituted “attempted murder times two”, I infer Troy was of the view her conduct constituted attempted murder.
(9)Taylor was of the view as Jodi had run someone over, she “clearly … should be going to gaol, and she didn’t”.
(10)The events that unfolded consequent upon Jodi’s arrival in Fairway Street on 18 April 2014 occurred quickly, in a highly volatile hostile environment, against a background of acrimony and mutual verbal abuse between Jodi and Troy and the two previous occasions where Troy had grabbed and pushed Jodi.
(11)Jodi drove west down Fairway Street on 18 April 2014 with Taylor in the front passenger seat.
(12)Upon approaching and passing the property, she saw Troy throwing a toy into the skip bin. She was sad and angry and yelled out through the window on Taylor’s side which was wound down a bit, “You can’t do that, that’s not your stuff”.[615]
[615] T691.34.
(13)Troy retorted that it was rubbish and told her to “fuck off”.
(14)Jodi stopped the Mazda facing west just past the driveway to 13 Fairway Street.
(15)Troy came to the passenger side of the Mazda and attempted to speak to Taylor, who said words to the effect “why are you doing this to me and mum?”.[616] She told Troy that she did not want to talk to him.[617]
[616] T228.32.
[617] T295.10.
(16)Taylor’s response angered Troy and he kicked the bottom of the front passenger door leaving a dent and a dirty shoe mark. The dent and dirty shoe mark are noted by Brevet Sergeant McGowan in her affidavit[618] (depicted in photographs on pages 125 and 127 of exhibit A6).
[618] Exhibit A6.
(17)Troy’s left boot, which appears to be sturdy work boot, is depicted in the photograph at page 54 of exhibit A2. Troy was wearing sturdy work boots at the time he kicked the front passenger door of the Mazda.
(18)Consequent upon Troy kicking the door on their daughter’s side of the Mazda, Jodi became fearful. Troy’s anger had not previously been directed at Taylor.
(19)Having kicked the car door, Troy moved around the front of the Mazda, to the driver’s side window. He punched the driver’s side vision mirror in his anger and aggressively remonstrated with Jodi.
(20)Troy’s behaviour at the driver’s side window was aggressive and intimidating, such that Jamie grabbed Troy and pulled him away from the driver’s side door.
(21)Troy pulled away from Jamie and moved to front of the Mazda “looking straight at Jodi”, blocking the Mazda from moving forward.
(22)Jodi “had to get out of there somehow because [she] couldn’t go forward because he was there”. Jodi, in wanting to leave the scene, not able to move forward and concerned about where Jamie might be on the road, reversed the Mazda at speed, in an arcing motion over the kerb and across the grass verge under heavy acceleration. The tyre mark on the grass verge is physical evidence of the heavy acceleration.
(23)Jodi was looking over her left shoulder “behind me where I wanted the car to go” as she reversed, intending to travel east up Fairway Street and did not see Troy as she reversed.
(24)Troy could not be seen by Jodi.
(25)Jodi stopped the Mazda near the start of the driveway to 13 Fairway Street in a position corresponding to the large tyre mark on the driveway, unaware of where Jamie was and unaware of Troy’s position, intending to straighten the vehicle then reverse and drive east up the street.
(26)Unexpectedly, violently, and with the application of a large degree of force, the driver’s side window was punched and/or pulled out, and the windscreen punched by Jamie while the Mazda was stopped:
(i)     The state of, in particular, Troy and Jamie’s evidence does not permit me to make a finding as to what caused Jamie to punch and/or pull out the window and punch the windscreen.
(a)Jamie said in examination-in-chief that the Mazda mounted the kerb in reverse, just missing Troy. Jamie asserted it then drove forward, mounting the kerb again, dragged Troy onto the driveway, pushed Troy up the driveway, and ran over Troy. He further asserted the Mazda went forward again but did not hit Troy, whereupon he punched and/or pulled out the driver’s side window and punched the windscreen. In cross‑examination, Jamie said Troy was being pushed by the Mazda but had not been run over when he got to the driver’s side window. Jamie agreed that when he got to the driver’s side window, he pulled it out.
(b)Troy’s evidence was to the effect the Mazda was moving backwards when it bumped him. Troy said he stumbled, his glasses fell off, he bent down, and, when he looked up, he was being run over. When asked whether he agreed the Mazda was reversing, Troy said he could not remember, he thought it lurched forward and then bumped him, but he could not remember that far back. He added he was on his knees when he stumbled and, as he was getting up, he was hit by the car.
(ii)    It may be that Troy was bumped by the Mazda and stumbled as it reversed in the arc. It may be that Jamie acted in the manner he did if he lost sight of Troy when Troy stumbled, or saw Troy being bumped and stumbling.
(27)In Jodi’s words, “Jamie had again come out of nowhere and he punched the windscreen right where my face was, like directly at my head and then he moved to my window and punched my window, Taylor-Marie’s just freaking out”.[619] Glass shattered on Jodi, increasing her fear. She was panicking and “I just knew – we still had to get out of there”.
[619] T697.10-13.
(28)Jodi, whose fear was heightened by the unexpected and violent pulling out of the window and smashing of the windscreen, mistakenly put the Mazda into first gear instead of reverse. Alternatively, despite Jodi not accepting that Taylor pulled the Mazda out of gear, in the highly charged moments during which the collision took place, it may be that Taylor did pull it out of gear, whereupon Jodi had to reengage gear and moved up to the wrong gear. As Jodi described when asked how the Mazda got out of reverse:[620]
[620] T802.35-38.
A.    Because I panicked when the windscreen then got smashed and the window.
Q.    I put it to you the truth is you made a conscious decision to drive forward once you got to the position you’ve marked in the driveway of No.13.
A.    That’s not true.
Q.    The reason you made a conscious decision to go forward was your intent to run down Troy.
A.    That’s not true.
Q.    You were in reverse, there’s no need for you to take it out of reverse at all, was there, had you intended to continue across your path, that is across the path you’ve indicated, to the other side of Fairway Street.
A.    I don’t know whether I knocked it, I don’t know.
Q.    You don’t know at all how it got –
A.    I don’t remember, I’m sure you haven’t been in that situation before but it was quite panicky.
(29)First gear and reverse are alongside each other in the Mazda’s gear configuration. It is easier to select first than reverse because there is no separate downwards motion required.
(30)States of fear or circumstances of panic impact decision making and are likely to cause errors of judgment.
(31)Jodi, in her state of fear and panic, urgently wanted to exit the driveway. Not realising the Mazda was in first gear and while looking to her rear, she accelerated hard causing the Mazda to move forwards up the driveway.
(32)The state of the evidence does not permit me to make findings about the sequence of events that followed the Mazda driving forward under hard acceleration, other than to suggest the following:
(i)     As the Mazda went forward under hard acceleration, Troy, who having just stumbled was close to the front of the Mazda and out of Jodi’s sight, was run over.
(ii)    Immediately upon realising the Mazda was not in reverse, Jodi stopped and reversed, and in doing so reversed over Troy’s leg and then ran over Jamie, who was near the right front wheel having just pulled out the window and smashed the windscreen.
(iii)   The forward and reverse manoeuvres of the Mazda occurred in a few seconds. Despite Jodi’s denial of any left-hand steer input, the forward manoeuvre changed direction to the left. Left-hand steer may have been applied upon Jodi realising she was in the wrong gear.
(33)Jodi did not mention a gun or, for that matter, a knife on 18 April 2014. Troy and Jamie were not aware of the presence of the knife in the Mazda on 18 April 2014.
(34)Jodi did not utter any words or engage in any conduct from which it can be inferred she intentionally collided with Troy.
(35)Troy and Jamie’s behaviour frightened and panicked Jodi into an error of judgment which caused the collision.[621]
[621] Cusack v Stayt [2000] NSWCA 244 at [29].

I accept Jodi did not know where Jamie was situated on the road after Troy broke free of his hold. Troy also gave evidence he did not know where Jamie was at this time. I accept Jodi’s evidence in answer to the various alterative paths to leave the scene suggested by Mr Hall. She said she did not know where Jamie was on the road,[622] she was in fear and panicked when the window and windscreen were smashed after Jamie appeared out of nowhere. She also said she may not have been “skilled enough as a driver”, and it was not a normal way of driving.
[622] T800.19-20.
Conclusion
I am satisfied Troy kicked the front passenger door, walked in front of and stood in the front of the Mazda. Jodi did not owe Troy a duty of care once he had kicked the car, punched the driver’s side vision mirror, behaved aggressively and intimidatingly at the driver’s window and then at the front of the Mazda preventing Jodi from driving forward.
Troy has not discharged the onus of establishing it was more probable than not that Jodi drove at him intentionally. I am satisfied Jodi, in a state of fear and panic, manoeuvred the Mazda in order to remove herself and Taylor from the highly charged situation.
The evidence relied on by Troy is not clear, cogent and credible such as to persuade me, on a balance of probabilities, that Jodi intentionally collided with him.
If I am wrong and Jodi’s of duty of care to Troy was not suspended as I have found, “the circumstances were such as to bring about a significant reduction in its normal content”[623] such that no breach of duty is made out.
[623] Cusack v Stayt [2000] NSWCA 244 at [29]
Troy has not proved that in the circumstances Jodi was placed, a reasonable person in her position would have taken some precaution against the risk of harm pursuant to s 32(1)(c) of the Civil Liability Act1936 (SA). Viewed prospectively in the light of the circumstances where Troy was at the front of the Mazda and not knowing where Jamie was, Jodi acted reasonably in attempting to leave quickly by reversing over the kerb away from Troy. Viewed prospectively in the light of the circumstances where Jodi’s state of fear and panic was heightened by the unexpected, violent smashing of the windscreen and window, her mistaken selection of first gear instead of reverse causing her to collide with Troy was not an unreasonable error.

Annexures
Annexure 1 – A copy of the photograph at page 52 of exhibit A2

Annexure 2 – A copy of the photograph at page 56 of exhibit A2

Annexure 3 – A copy of the photograph at page 67 of exhibit A2

Annexure 4 – A copy of the Castle worksheet

Annexure 5 – A copy of exhibit A20 marked by Taylor

Annexure 6 – A copy of exhibit A18 marked by Taylor

Annexure 7 – A copy of exhibit A34 with cut-outs placed and markings made by Troy

Annexure 8 – A copy of exhibit A22 marked by Troy

Annexure 9 – A copy of exhibit R23 marked by Troy

Annexure 10 – A copy of exhibit A46 with cut-outs placed and markings made by Jamie

Annexure 11 – A copy of exhibit A36 marked by Jamie

Annexure 12 – A copy of exhibit A37 marked by Jamie

Annexure 13 – A copy of the photograph at page 73 of exhibit A2

Annexure 14 – A copy of exhibit A47 with cut-out placed and markings made by Daniel

Annexure 15 – A copy of exhibit R57 marked by Jodi

Annexure 16 – A copy of exhibit A62 marked by Jodi

Annexure 17 – A copy of exhibit A58 marked by Jodi

Annexure 18 – A copy of exhibit A59

Annexure 19 – A copy of exhibit A60

Annexure 20 – A copy of exhibit A61 marked by Jodi

Annexure 21 – A copy of Fig. 1 depicted at page 3 of Mr Hall’s report 11 February 2021

Annexure 22 – A copy of Fig. 2 depicted at page 4 of Mr Hall’s report 11 February 2021

Annexure 23 – A copy of page 22 of Mr Griffiths’ report 22 April 2021 depicting Fig. 6, Fig. 7, and Fig. 8

[2022] SASC 90

25 August 2022